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Foreign Sovereign Immunities Act

DISCLAIMER:

The information relating to the legal requirements of specific foreign countries is provided for general information only and may not be totally accurate in a particular case. Questions involving interpretation of specific foreign laws should be addressed to foreign attorneys. This circular seeks only to provide information; it is not an opinion on any aspect of U.S., foreign, or international law. The U.S. Department of State does not intend by the contents of this circular to take a position on any aspect of any pending litigation.

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What is the role of the Department of State assist in effecting service on a foreign government?

The Department of State, Overseas Citizens Services [formerly Special Consular Services], Office of Legal Affairs is responsible for providing service of process on foreign states under the Foreign Sovereign Immunities Act (FSIA) via the diplomatic channel in accordance with 28 U.S.C 1608(a)(4) and implementing regulations, 22 C.F.R. 93. In addition, the Department provides assistance under Sec. 1608(b) of the Act by providing information about service pursuant to letters rogatory or applicable international conventions on service. Providing service pursuant to the FSIA is the Department of State’s statutory obligation and, provided the hierarchical methods of service set forth in Sec. 1608 have been followed, the Department has no discretion in complying with the Act. See 28 U.S.C.1608(a)(4); H.R. Rep. No. 94-1487, 94th Cong., 2d Sess. (1976) reprinted in 1976 U.S. Code Cong. & Ad. News 6623; 22 C.F.R. Part 93.

What is the Foreign Sovereign Immunities Act?

Foreign Sovereign Immunities Act of l976, Pub. L. 94-583, 90 Stat. 289l, 28 U.S.C. Sec. l330, l332(a), l39l(f) and l60l-l6ll [hereinafter the FSIA], limits the role of the Executive branch in suits against foreign governments and governmental entities by precluding the Department of State from making decisions on state immunity. The FSIA codifies the restrictive theory of immunity, incorporating criteria, which the courts had developed in applying the theory, while codifying and applying international law. (See ch. 5, Restatement 3rd, Foreign Relations Law of the United States, sec. 451-463, pp. 390, 435, American Law Institute (1986).) The Act prescribes the means of service for suits against a foreign state or agency and instrumentality in Section.

What is the restrictive theory of sovereign immunity?

Under the U.S. legal system the scope of a foreign state’s immunity is determined by judicial, rather than executive, authorities. A party to a lawsuit, including a foreign state or its agency or instrumentality, is required to present defenses such as sovereign immunity directly to the court in which the case is pending. The immunity of a state from the jurisdiction of the courts of another state is an undisputed principle of customary international law. Until the twentieth century, sovereign immunity from the jurisdiction of foreign courts seemed to have no exceptions. However, as governments increasingly engaged in state-trading and various commercial activities, it was urged that the immunity of states engaged in such activities was not required by international law, and that it was undesirable: Immunity deprived private parties that dealt with a state of their judicial remedies, and gave states an unfair advantage in competition with private commercial enterprise. The restrictive principle of immunity spread rapidly after the Second World War. The United States moved to the restrictive theory in the early 1950's, and adopted it by statute in 1976 (the FSIA). Under the restrictive theory of sovereign immunity, a state or state instrumentality is immune from the jurisdiction of the courts of another state, except with respect to claims arising out of activities of the kind that may be carried on by private persons. Under the restrictive theory, a state is immune from any exercise of judicial jurisdiction by another state in respect of claims arising out of governmental activities (de jure imperii); it is not immune from the exercise of such jurisdiction in respect of claims arising out of activities of a kind carried on by private persons (de jure gestionis).

What are the general exceptions to the jurisdictional immunity of a foreign state?

A. Since the enactment of the FSIA in 1976, the general exceptions to the jurisdictional immunity of a foreign state have expanded, moving beyond the realm of "commercial activity." Specifically, 28 U.S.C. 1605 now provides that a foreign state shall not be immune from the jurisdiction of courts of the United States or of the states in any case in which:

1605(a) (1) - explicit or implicit waiver of immunity by the foreign state;

1605(a)(2) - commercial activity carried on in the United States or an act performed in the United States in connection with a commercial activity elsewhere, or an act in connection with a commercial activity of a foreign state elsewhere that causes a direct effect in the United States;

1605(a)(3) - property taken in violation of international law is at issue;

1605(a)(4) - rights in property in the United States acquired by succession or gift or rights in immovable property situated in the United States are at issue;

1605(a)(5) - money damages are sought against a foreign state for personal injury or death, or damage to or loss of property, occurring in the United States and caused by the tortious act or omission of that foreign state;

1605(a)(6) - action brought to enforce an agreement made by the foreign state with or for the benefit of a private party to submit to arbitration;

1605(A)(a)(1) - money damages are sought against a foreign state for personal injury or death that was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources for such an act, if the foreign state is designated as a state sponsor of terrorism under section 6(j) of the Export Administration Act of 1979 (50 U.S.C. App 2405(j) or Section 620A of the Foreign Assistance Act of 1961 (22 U.S.C. 2371).

1605(b) - a suit in admiralty is brought to enforce a maritime lien against a vessel or cargo of the foreign state which maritime lien is based upon a commercial activity of the foreign state.

What is the difference between a foreign state, political subdivision, agency or instrumentality?

Section 1330(a) of the FSIA gives federal district courts original jurisdiction in personam against foreign states, which are defined as including political subdivisions, agencies, and instrumentalities of foreign states. The FSIA provides distinct methods of service on a foreign state or political subdivision, 28 USC 1608(a), or service on an agency or instrumentality of a foreign state, 28 USC 1608(b). In order to serve the defendant, the claimant must determine into which category the defendant falls. If in doubt, a claimant may wish to serve the defendant according to both sets of provisions. The term "political subdivisions" includes all governmental units beneath the central government, including local governments. According to the FSIA's legislative history. Section 1603(b) defines an "agency or instrumentality" of a foreign state as an entity (1) which is a separate legal person, corporate or otherwise, and (2) which is an organ of a foreign state or political subdivision thereof, or a majority of whose shares or other ownership interest is owned by a foreign state or political subdivision thereof, and (3) which is neither a citizen of the a state of the United States as defined in Sec. 1332(c) and (d) nor created under the laws of any third country. An instrumentality of a foreign state includes a corporation, association, or other juridical person a majority of whose shares or other ownership interests are owned by the state, even when organized for profit. The legislative history of the FSIA at 1976 U.S. Code Cong. & Ad. News 6614-6618, states in part: "[A]s a general matter, entities which meet the definition of an ''agency or instrumentality of a foreign state'' could assume a variety of forms, organizations, such as a shipping line or an airline, a steel company, a central bank, an export association, a governmental procurement agency or a department or ministry which acts and is suable in its own name. Id. at 6614.

Is there a hierarchical order in which service must be attempted on a foreign state under the Act?

The FSIA (28 U.S.C. Sec. 1608(a)(1)-(4) provides for service of process on foreign state defendants in a four-step, hierarchical manner: (i) pursuant to a special agreement between the plaintiff and the foreign state; (ii) as prescribed in an applicable international agreement; (iii) via mail from the court clerk to the head of the foreign state’s Ministry of Foreign Affairs; (iv) via the diplomatic channel. The legislative history of and court cases concerning the FSIA are extensive. The FSIA clarifies the circumstances in which a foreign state will be immune from suit and embodies a federal long-arm statute pursuant to which in personam jurisdiction can be obtained over a foreign state, political subdivision, agency or instrumentality, provided that service of process is effected in compliance with its service provisions. Service must be performed in a hierarchical manner --- if service cannot be made in accordance with 1608(a)(1), then service is attempted pursuant to 1608(a)(2) and so forth until the various methods are exhausted.

Are the methods described in section 1608(a)(4) exclusive? Can't I just serve the foreign embassy or mission to the United Nations?

The FSIA provides the exclusive methods for effecting service of process on a foreign state, political subdivision, agency or instrumentality. See H.R. Rep. No. 94-1487, 94th Cong., 2d Sess. (1976), reprinted in 1976 U.S. Code Cong. & Ad. News 6604, 6622-23. Service on a foreign embassy in the United States or mission to the United Nations is not one of the methods of service provided in the FSIA.

How much time does the foreign state have to reply once service has been effected?

28 USC 1608(d) provides that a foreign state has 60 days from the date service is effected in which to file an answer or other responsive pleading. The 60 day response period must be included in both the summons and the notice of suit where required.

Do I have to have documents translated?

Section 1608(a)(3) and (4) require translation of the summons, complaint and notice of suit. Section 1608(b)(3) requires translation of the summons and complaint (and letters rogatory where applicable). Section 1608(e) requires translation of the default judgment and the notice of default judgment.

How do I effect service on a foreign state or political subdivision?

The FSIA provides the following hierarchical steps for effecting service:

Service Pursuant to Special Arrangement, 28 U.S.C. 1608(a)(1), provides for service pursuant to special arrangement of the parties.

Service by sending a copy of the summons and complaint and a notice of suit, together with a translation of each into the official language of the foreign state, by any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the head of the ministry of foreign affairs of the foreign state concerned, 28 U.S.C. 1608(a)(3). Proviso: Formal Objection of Foreign State to Service by Mail Upon Accession to the Hague Service Convention: If a foreign state which is a party to the Hague Service Convention formally objected to service by mail when it acceded to the Convention, service under Section 1608(a)(3) should not be attempted, and the plaintiff should proceed to service under Section 1608(a)(4), citing in the cover letter to the Department of State, Office of Overseas Citizens Services the foreign state's objection to service by mail as noted in its accession to the Hague Service Convention. To determine which foreign state has objected to service under Article 10(a) of the Hague Service Convention via postal channels, see the Hague Conference on Private International Law website.

Service via Diplomatic Channels: 28 U.S.C. 1608(a)(4) provides for service of a summons, complaint and notice of suit by way of the diplomatic channel if service could not be made by mail in accordance with Section 1608(a)(3) within 30 days. The Department of State will not accept a request for service under Section 1608(a)(4) if the other methods for service in Section 1608(a) have not been exhausted, if the documents are incomplete, or if requisite translations are not provided. The summons, complaint and notice of suit must be submitted to the U.S. Department of State, CA/OCS/L, SA-17, 10th Floor, Washington, DC 20522-1710 in duplicate. Requesting courts or plaintiff's counsel should establish in writing to the Department that service has been attempted pursuant to 1608(a)(l), (2) and (3). If service is attempted pursuant to Section 1608(a)(2), by applicable international convention, and service is denied by a foreign central authority for the convention, a copy of the denial should be furnished. As explained above, if service under Section 1608(a)(3) is inapplicable due to the foreign state’s formal objection upon accession to the Hague Service Convention, this fact should also be noted.

What is a Notice of Suit?

28 U.S.C. 1608(a)(3) and 1608(a)(4) require preparation of a "notice of suit". 22 CFR 93.2(e) provides a format for a notice of suit. There is no pre-printed form. 22 CFR 93.2(e) annex provides that a copy of the FSIA must accompany the notice of suit.

How should a request for service under Section 1608(a)(4) be transmitted to the State Department?

28 U.S.C. 1608(a)(4) and 22 CFR 93.1 provide that the documents be sent to the Department of State by the clerk of court. In practice, some courts have local rules, which provide that such documents are transmitted directly by plaintiff’s counsel rather than by the clerk of court. The Department of State accepts requests under Section 1608(a)(4) received under cover of a letter from either the clerk of court or counsel for the plaintiffs.

What is Proof of service via the diplomatic channel under Section 1608(a)(4)?

A certified copy of the diplomatic note transmitting the summons, complaint and notice of suit to the foreign state is forwarded by the Department of State, Office of Policy Review & Interagency Liaison, Overseas Citizens Services to the clerk of the court where the action is pending as proof of service. A copy is provided to plaintiff's counsel.

How do I effect service on a foreign state with which the United States does not have diplomatic relations?

The FSIA makes no provision for service of process through diplomatic channels where there are no diplomatic relations between the United States and the foreign state. In practice, service has been accomplished where a protecting power arrangement exists, unless the protecting power was restricted to emergency consular protection services. See 22 C.F.R. 93.1(3). Consult the Department of State Office of Policy Review & Interagency Liaison, Overseas Citizens Services for guidance in such cases.

How do I effect service on an agency or instrumentality of a foreign state (28 U.S.C. 1608(b)?

28 U.S.C. Section 1608(b) governs service on an agency or instrumentality of a foreign State.

28 U.S.C. 1608(b)(1) provides for service by special arrangement between the plaintiff and the agency or instrumentality.

28 U.S.C. 1608(b)(3) provides three alternative methods of service: (A) pursuant to letters rogatory; requests should be transmitted to the U.S. Department of State, CA/OCS/L, SA-17, 10th Floor, Washington, D.C. 20522-1710. The letters rogatory and accompanying documents should be submitted in duplicate (that is, one original in English with seal of court and signature of the judge, English photocopy and two copies of the translation.) No notice of suit is required; (B) by any form of mail requiring a signed receipt to be addressed to the agency or instrumentality to be served. If a foreign state which is a party to the Hague Service Convention formally objected to service by mail when it acceded to the Convention, service under Section 1608(b)(3)(B) should not be attempted; or (C) by order of the court in the United States consistent with the law of the place where service is to be made. Before service is attempted under Section 1608(b)(3)(C), the FSIA calls for the court to look to the laws of the foreign state regarding service of documents in order to ensure that the judicial sovereignty of the foreign state is not violated inadvertently.

How do I effect service of a default judgment or other documents?

Section 1608(e) provides that once a default judgment has been entered, a copy shall be sent to the foreign state according to the methods set forth in section (a) and (b) of the Act. A "Notice of Default Judgment" shall be prepared utilizing the format prescribed in the Annex to 22 CFR 93.2. As a practical matter, if service has been attempted in accordance with the hierarchical methods set forth in Section 1608(a) in the initial phase of the action (service of the summons, complaint, and notice of suit) without success, necessitating service under Section 1608(a)(4) through the diplomatic channel, when service of a default judgment on the Foreign State becomes necessary, plaintiffs may transmit the request for service through the diplomatic channel to the Department of State, without repeating efforts at service under Section 1608(a)(1)-1608(a)(3).

Can I serve other documents through the diplomatic channel?

Requests for service via the diplomatic channel of documents other than the summons, complaint and notice of suit or the default judgment, not provided for in the Act, will be considered by the Department of State, Overseas Citizens Services, Office of Policy Review & Interagency Liaison on a case-by-case basis in coordination with the Office of the Legal Adviser for Diplomatic Law and Litigation.

How many copies are required?

You need to send two sets of the documents. One will be served. The other will be returned with a copy of the proof of service. Documents include:

For Service Under Section 1608(a)(4):

Set 1: a. Summons (English, Bearing Seal of Court and Signature of Judge or Clerk) b. Complaint (English) c. Notice of Suit (English, See 22 CFR 93) d. Translations of all of the above

Set 2:Photocopies of all of the above (Summons, Complaint, Notice of Suit, and translations of each.)

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